Captain Barnard: Affirmative Action gone wrong

2013-03-13 15:06

Captain Barnard’s story reminds us of the challenges we have yet to overcome, unfair discrimination in the workplace. Whilst labour laws are very clear on what constitutes unfair discrimination in the workplace, we still require judges to help us understand the application of such laws when disputes arise.

Captain Barnard, after working for the SAPS for 24 years, applied for a vacancy in the SAPS. Her application was turned down on two occasions, even though the interview panels had recommended her as the suitably qualified person to fill the vacant post on both occasions (Rabkin, 2012).

The SAPS did not appoint her because she is white, and according to their Employment Equity Plan, the post was part of a number of posts that would only be available to black candidates as there are already too many white people occupying such positions in the SAPS (Rabkin, 2012). So the SAPS planned to balance the racial demographics.

Race aside, according to the Department of Labour, women form part of the previously disadvantaged groups. This alone qualifies her for an Affirmative Action appointment, unless the SAPS can prove that they have an equitably fair gender balance in the rank Captain Barnard applied for - which is most likely not the case, as most senior posts in the SAPS were historically occupied by white men, not women.

The Employment Equity Act which the SAPS seeks to comply with prohibits discrimination on the basis of race, gender, and sex. The Act considers it fair to discriminate on such grounds only for affirmative action measures consistent with the Act.

And employers are free to discriminate but in doing so they must, according to the Act, take cognisance of the employee’s right to equal dignity. In this case, the SAPS ignored this and would rather undermine Captain Barnard’s right to fair labour practice, right to inherent dignity, right to equality, and keep the post vacant than to appoint a person who in their very own opinion, is suitably qualified for to fill the vacancy – all because the SAPS cares more about the number of white employees than the rights of women, their very own employees.

This is inconsistent with Affirmative Action as envisaged by the Employment Equity Act (EEA), because the Act does not only look at numbers and skin colour, but requires the employer to be fair, and consider individual rights of the person being discriminated against. But Labour Appeals Court Judge President Mlambo misunderstood the rationale behind High Court Judge Pretorius’ decision.

Judge Mlambo seems to think that Judge Pretorius suggested that Employment Equity Plans must yield to an individual’s right to equality, fair labour practice, and dignity; When Judge Pretorius only interpreted the EEA which requires such rights to be taken into consideration when making an Affirmative Action appointment. Judge Mlambo looked at the SAPS numerical targets and ignored other matters to be considered when making such an appointment.

Judge Pretorius, who ruled in favour of Captain Barnard, considered her rights, and the rights of the employer, informed by the EEA on Affirmative Action measures, ruled that Employment Equity Plans had to be rational and fair.

This simply means that if a hospital in Libode has too many white doctors but needs another doctor, and according to the Department of Health's Employment Equity Plans (EEP), more black doctors are needed to meet its EEP's numerical targets; the Department should be allowed to appoint a white doctor to fill the vacant post. This makes sense because the hospital offers an essential service, the absense of a doctor will result in the department not being able to fulfill its constitutional obligations. No rational person would expect the hospital to turn people away due to staff shortage, whilst waiting for black students to graduate from medical school.

Similarly, the SAPS cannot undermine the rights of an individual whilst waiting for black suitably qualified individuals to fill the vacant posts. The SAPS has constitutional obligations to fulfill and offers an essential service to the public. There are other measures they can take to skill black individuals in the SAPS so that they may be able to one day fill such vacancies but not at the expense of Captain Barnard's constitutional rights and the public who she is meant to serve. So the SAPS should have looked at other EEA requirements in terms of the previously disadvantaged groups such as her gender, comparing that with the white members in the position she applied for.

This is not unique to the SAPS, it happens across public institutions where people are appointed on skin colour and not merit. The EEA is clear on how a decision should be made on Affirmative Action posts. If Bulelani Mfaco and Piet Van Der Skyf apply for the same position, both have the same qualifications, Piet worked as an intern for a year but Bulelani has not worked at all. Bulelani should get the job as he can, within a reasonable period gain attain such a qualification.

My lecturers suggest that only when it is difficult to separate two candidates from different races in terms of their qualifications and experience, then the black one wins. Although the EEA allowes such discrimination, the Act requires that the employer communicates its EEP with all employees. If the SAPS advertised the post with the intention of appointing only black people to meet its EEP targets, then the Act suggests that this should have been communicated with Captain Barnard and all her colleagues just like Woolworths and SAA did.

Then Captain Barnard would have been spared the humiliation of being turned down, not once, but twice when the interview panel recommended her for the appointment in both occasions. The right, fair, equitable, just, proper thing to do is appoint her whilst grooming black candidates to fill future vacancies in her rank. This would not result in anyone's rights being limited. Which is important to the SAPS? Serving the public or looking black?

Could this be the explaination behind the Auditor General's findings in many municipalities across the republic with incompetent (I'll leave their race to your imagination) officials holding key positions resulting in the municipalities failure to deliver services or manage finances? Organisations must remember that they are providing a service to the public and not overlook the competency of the candidate, only focusing on race or ethnicity in a bid to comply with the Employment Equity Act, the Act prohibits such practices and considers them to be discriminatory.

*I would not be surprised if the SAPS failed to meet the EE requirements on women and people with disability.*

Reference

Rabkin, F. (2012). Police Affirmative Action Case Could go to Highest Court. Retrieved 12th March, 2013, from http://www.bdlive.co.za/national/2012/11/02/police-affirmative-action-case-could-go-to-highest-court

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